Landwatch Lane County v. LCDC

A local government's "noncompliance" with local land use regulations is a pattern of decisionmaking that is representative of a class of decisions involving the same or related provisions of a land use regulation, the same geographic areas, and the same types of land use. OAR 660-045-0020(10).

Petitioner Landwatch Lane County (Landwatch) appealed from an order entered by Respondent, Land Conservation and Development Commission (LCDC) in which LCDC determined that Landwatch failed to prove that Lane County engaged in a pattern of noncompliance with local land use policy, and accordingly, that there was not good cause to proceed to an enforcement order hearing.  On appeal, Landwatch argued that the 34 violations by Lane County showed a substantial pattern of noncompliance and “good cause to proceed” to an enforcement order hearing as a matter of law.  LCDC responded that there was not good cause to proceed because the 34 violations were not representative of a class of the same type of decisions (totaling 757), and therefore did not show a pattern of noncompliance.  As a general matter, LCDC has discretion to issue an enforcement order if there is substantial evidence of a local government’s noncompliance with local land use regulations.  OAR 660-045-0090; ORS 197.320(6).  Under OAR 660-045-0020(10), “noncompliance” is a pattern of decisionmaking that is representative of a class of decisions involving the same or related provisions of a land use regulation, the same geographic areas, and the same types of land use. The Court of Appeals concluded that, because Lane County’s 34 violative decisions were not representative of the class of 757 decisions in which they fell, Landwatch failed to show a pattern of noncompliance on the part of Lane County.  Thus, the Court held LCDC did not err in not proceeding to an enforcement order hearing.  Affirmed.